Troy seeks 'mole' who disclosed internal report on fatal shooting

Federal judge orders city to explain why report was not revealed in lawsuit's discovery phase

Troy police sergeant Randall French enters the Rensselaer County Courthouse on Wednesday, March 20, 2019, in Troy, N.Y. Sgt. French fatally shot Edson Thevenin during a 2016 DWI traffic stop. He never faced charges after former Rensselaer County District Attorney Joel Abelove allowed him to testify with immunity Ñ a move that effectively ended any possible prosecution of the officer. He was in court for an unrelated trail. (Will Waldron/Times Union)

Troy police sergeant Randall French enters the Rensselaer County Courthouse on Wednesday, March 20, 2019, in Troy, N.Y. Sgt. French fatally shot Edson Thevenin during a 2016 DWI traffic stop. He never faced

Troy police sergeant Randall French enters the Rensselaer County Courthouse on Wednesday, March 20, 2019, in Troy, N.Y. Sgt. French fatally shot Edson Thevenin during a 2016 DWI traffic stop. He never faced charges after former Rensselaer County District Attorney Joel Abelove allowed him to testify with immunity Ñ a move that effectively ended any possible prosecution of the officer. He was in court for an unrelated trail. (Will Waldron/Times Union)

Troy police sergeant Randall French enters the Rensselaer County Courthouse on Wednesday, March 20, 2019, in Troy, N.Y. Sgt. French fatally shot Edson Thevenin during a 2016 DWI traffic stop. He never faced

ALBANY — The city of Troy has asked a federal magistrate to order the attorneys for the widow of a man fatally shot by a patrol sergeant in 2016 to disclose the "mole" who revealed the existence of a 62-page internal affairs report issued two years after the shooting.

The report was completed last year and never made public or disclosed to the attorneys for Cinthia Thevenin, who filed a federal lawsuit against the city in September 2016, five months after her husband, Edson, was killed as he fled a DWI traffic stop.

The existence of the report — as well as hundreds of pages of internal police records on the shooting — wasn't revealed until a confidential source called one of Thevenin's attorneys and told him about it.

The city of Troy and Sgt. Randall French, the officer who shot Edson Thevenin, are being represented in the federal lawsuit by a Glens Falls law firm, FitzGerald Morris Baker Firth, which has filed arguments saying the internal report should never be made public.

They also argue they are entitled to know the identity of the person who disclosed its existence to Cinthia Thevenin's legal team.

"Plaintiffs should not be permitted to keep this person as a 'mole' of sorts within the constituency of the city of Troy in order to circumvent well-established statutory and judicial framework regulating the disclosure of confidential material," Michael A. Brandi, an attorney for the city, wrote in a recent court filing. "Further, the longer that our office is kept in the dark as to this person's identity, the greater the potential danger to our client."

In response papers filed Friday in U.S. District Court, the attorneys for Thevenin countered that the person who tipped them about the report is not a city employee and did nothing wrong by telling them about it. They also noted that, in addition to the report, the city's attorneys had handed over more than 550 pages of previously undisclosed internal documents and five and a half hours of audio recordings, including interviews with officers, that should have been turned over months ago.

The city has argued that the records — even their existence — did not need to be disclosed due to a New York statute known as 50-a that restricts the release of records used to evaluate the performance of a police officer. Thevenin's attorneys claim that argument is misplaced and "an attempt to deflect attention" from the fact the materials had been improperly concealed.

"The bigger question is why did Troy withhold this highly relevant discovery?" states the response filed by one of Thevenin's attorneys, Neil Torczyner.

It's unclear how the internal report characterizes the shooting or whether it led to discipline of any police officers, including French.

Some officers at the scene of the shooting allegedly told civilian witnesses to "get the f__ out of here." Those witnesses contradicted French's account that he was pinned between his cruiser and Edson Thevenin's revving vehicle when he opened fire.

A year-long investigation by the state attorney general's office had subsequently raised questions about French's version of what unfolded, and also sharply criticized the investigations conducted by the Troy Police Department and former Rensselaer County District Attorney Joel E. Abelove.

U.S. Magistrate Judge Daniel J. Stewart recently shot down an assertion by the city's attorneys that the internal affairs report is confidential under 50-a. He noted that New York's statute does not apply in a federal proceeding.

Stewart this week ordered the city's attorneys to turn over the report and other records, including photographs and audio recordings of interviews with police officers and witnesses. He also directed the city to turn over the most recent copy of French's personnel file to the plaintiff's attorneys.

In addition, the judge instructed the city to provide a "detailed explanation" of why the internal affairs report was never disclosed during the discovery phase of Cinthia Thevenin's federal lawsuit.

Michael L. Rose, a Manhattan attorney on Thevenin's legal team, previously said the city "had an ongoing obligation to disclose the information, which they failed to meet."

Troy police officials have never said whether any officers were disciplined in connection with the fatal shooting. They have publicly supported French's use of deadly force as justifiable, saying that although Edson Thevenin was not armed, they considered his vehicle a deadly weapon.

For now, the federal magistrate has ruled that the internal affairs report is for "attorney's eyes only" and will not be made public. The report had been prepared by Joseph L. Centanni, a Troy police captain who heads the detective bureau and had also worked in internal affairs.

In a separate court filing on Friday, Cinthia Thevenin's attorneys asked the judge to unseal the internal records, noting the internal affairs report — which they have now read — is directly relevant to the heart of their claim of whether "French’s shooting of Thevenin (was) an illegal act which violated Thevenin’s civil rights."

They urged Stewart to reject the city's request to keep the report confidential by sealing any reference to it in both pre-trial motions and at trial, should one take place.